Sonu @ Sohan Lal vs State on 25 July, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR

D.B. Murder Reference No. 1 / 2013

State of Rajasthan

—-Petitioner

Versus

Sonu @ Sohan Lal S/o Satpal, by caste Dhanak, aged 34 years,
Resident of Ward No.8, Kachhi Thedi Radewala Road, Karanpur,
P.S. Karanpur, presently Ward No.19, Sadul Sahar, Police Station
Sadul Sahar, District Sri Ganganagar.

—-Respondent

Connected With

D.B. Criminal Appeal No. 64 / 2013

Sonu @ Sohan Lal S/o Satpal, by caste Dhanak, aged 34 years,
Resident of Ward No.8, Kachhi Thedi Radewala Road, Karanpur,
P.S. Karanpur, presently Ward No.19, Sadul Sahar, Police Station
Sadul Sahar, District Sri Ganganagar.

—-Appellant

Versus
State of Rajasthan

—-Respondent

__

For Petitioner(s) : Mr. Mahesh Bora, Sr. Advocate with

Mr. Nishant Bora Mr. Arun Kumar.

For Respondent(s) : Mr. J.P.S. Choudhary, PP.

Mr. Rakesh Matoria, for complainant.
__
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HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS

HON’BLE MR. JUSTICE DEEPAK MAHESHWARI

JUDGMENT

[Per Mr. G.K. Vyas, J.]

Date of Judgment: 25th July, 2017

REPORTABLE
The Special Additional Sessions Judge (Women Atrocities

Dowry Prohibition) Cases, Sri Ganganagar, made death reference

for confirmation of capital sentence passed vide judgment dated

10.01.2013 in Session Case No.15/2010, whereby accused, Sonu

@ Sohanlal, was convicted for offences under Section 302 and 376

IPC and following sentence was passed against accused appellant-

Sonu @ Sohanlal: –

302 of IPC Capital punishment.

376 of IPC Life imprisonment along
with fine of Rs.1000/-. In
default of payment of fine
to further undergo six
months‟ additional simple
imprisonment.

The accused appellant, Sonu @ Sohanlal, preferred appeal

against the judgment dated 10.01.2013 passed by learned Special

Additional Sessions Judge (Women Atrocities Dowry Prohibition)

Cases, Sri Ganganagar, in Session Case No.15/2010, whereby the

accused appellant was convicted for offence under Sections 302

and 376 of IPC and death sentence is passed against him for

commission of offence u/s 302 and sentence for imprisonment for
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life has been imposed against him for committing offence u/s 376

of IPC.

In the death reference made by the Special Addl. Sessions

Judge (Women Atrocities Dowry Prohibition) Cases, Sri

Ganganagar, and in the appeal filed by the accused appellant, the

judgment dated 10.01.2013 is under challenge, therefore, we are

deciding both the case by this common judgment.

Briefly stated, the facts of the case are that on 17.05.2010

at 03.15 PM the complainant PW.1- Mangilal, submitted a written

report (Ex.P/1) stating therein that he is resident of Ward No.19 of

Sadulsahar. Before two years, Sonu Kumar @ Sohan Lal, resident

of Karanpur, came at Sadulsahar for employment and he was

employed at the shop of one Laxmichand, since then he is residing

in Sadulsahar. According to complainant, Sonu Kumar became

friend of him and used to visit his house and due to good relations

he was treating him as brother. As per allegations of the

complainant, when accused Sonu used to visit his residence, he

(accused) developed illicit relations with his sister, Shalu. When

above fact came to the knowledge of the complainant, then he

raised objections and instructed Sonu Kumar not to keep relations

with his sister, but Sonu Kumar did not stop his activities of illicit

relation with his sister, Shalu. On 17.05.2010 when complainant‟s

mother and sister Manju and brother-in-law, Dharampal went

Padampur for exploring relation for the marriage of Shalu, the

complainant and his brother, Kishan, both left the house for some

work in the market. When all the family members went out of the
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home, the sister of complainant, Shalu, and Smt. Pinki, wife of his

younger brother remained in the house. According to complainant,

accused Sonu Kumar called Shalu at 12‟O Clock in the forenoon

when she was at home and took her in his rented house situated

in Ward No.16 of Sadulsahar. The complainant made allegations

that Sonu @ Sohanlal committed murder of his sister in his house

while inflicting injuries by sharp edged weapon „Gandasa‟. On that

day, at about 01.30 PM, when complainant came back to his

house for taking meal, wife of his younger brother Pinki informed

that Shalu was called by Sonu Kumar and Shalu went out from

house with Sonu Kumar.

Upon receiving such information, complainant made search

of his sister, Shalu, and according to him one Puranram S/o

Gyarsa Ram met him and informed that he has seen his sister and

Sonu Kumar at 12‟O clock near the school. The complainant

further stated that after getting such information another witness,

namely, Sahabram S/o Sukhpal, who was going to his house for

taking meal, informed in the way that I have seen Sonu Kumar

and one girl when they were going on foot towards Ward No.15.

After receiving the aforesaid information, the complainant went to

the rented house of Sonu Kumar (accused) and saw that room

was closed from outside. The allegation of the complainant is that

he made search from outside the room and saw the body of Shalu

was lying dead on the floor of room and blood over the body.

Upon aforesaid written-report (Ex.P/1) submitted by the

complainant, the S.H.O., Police Station- Sadulsahar, registered
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formal FIR No.140/2010 (Ex.P/2) on 17.05.2010. After

registration of FIR, the Investigating Officer immediately went to

house of Sonu Kumar and after inspection prepared site plan and

recorded details of the place of occurrence vide Ex.P/3 and

Ex.P/3A. The „Panchnama‟ (Ex.P/4) of the dead body was prepared

on spot. Blood stained pillow cover and bed-sheet were taken in

possession vide Ex.P/5. Blood stained sleeper of Shalu were also

taken in possession vide Ex.P/6. One piece of blood stained

„Chunri‟ lying on the fan, was also taken vide Ex.P/7. The blood

spread on the floor was also collected in the bottle vide Ex.P/8. All

the articles were sealed on the spot. The clothes which deceased,

Shalu was wearing viz. Salwar, underwear and other clothes, were

also taken in possession vide Ex.P/9 and sealed. The dead body of

deceased was taken to hospital for postmortem by the medical

officer in the Govt. Hospital, Sadulsahar. After conducting

postmortem the body was handed over to the complainant vide

Ex.P/10 for cremation. The photographs of the dead body were

also taken.

Accused, Sonu @ Sohanlal was arrested vide Ex.P/24 at

07.10 PM on 17.05.2010 and the clothes which he was wearing at

the time arrest were taken in possession and sealed vide Ex.P/25.

After arrested, upon the information furnished by accused Sonu @

Sohanlal, the weapon of offence „Iron-Barcha‟ was recovered vide

Ex.P/22. The site plan of place from where the weapon was

recovered was prepared vide Ex.P/23 and Ex.P/23A. All the

recovered articles were sent to the FSL, Jaipur vide Ex.P/31 for
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examination. In the investigation, postmortem report of Shalu

(Ex.P/32) was obtained. During investigation an application

(Ex.P/36) was filed before the Judicial Magistrate, Sri Ganganagr,

for recording the statement of accused under Section 164 Cr.P.C.

in pursuant of that, confessional statements of accused were

recorded vide Ex.P/40, in which, the accused, Sonu @ Sohanlal

accepted the fact of committing murder and inter-course with the

deceased, therefore, Section 376 IPC was also added and medical

examination of his potency was got conducted by the doctors and

report (Ex.P/34) prepared by the doctor was taken on record. The

vaginal swab and smear slide of deceased were also taken at the

time of postmortem and sent to the FSL, Jaipur, from where

report (Ex.P/33) was received and other chemical examination

report (Ex.P/37) was also received from FSL.

After completing the investigation the SHO, Police Station

Sadulsahar, filed charge sheet against the accused appellant u/s

302 and 376 of IPC in the court of Judicial Magistrate, Sadulsahar,

Sri Ganganagar, from where the case was committed to the court

of Sessions Judge, Sri Ganganagar for trial but later on it was

transferred to the court of Addl. Special Sessions Judge, Sri

Ganganagar, for trial.

The learned trial court after providing an opportunity of

hearing on the basis of evidence on record framed charges against

the accused appellant for committing offence under Sections 302

and 376 of IPC, but the accused appellant denied the charges

levelled against him and prayed for trial.

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In the trial, statements of 16 prosecution witnesses were

recorded and 41 documents were exhibited from the prosecution

side and Articles 1 to 10 were produced in support of prosecution

case.

After recording the evidence of the prosecution, statements

of accused appellant were recorded under Section 313 Cr.P.C., in

which accused Sonu @ Sohanlal denied all the allegations levelled

against him by the prosecution witnesses and said that all the

recoveries which are alleged to be made by the investigating

officer, are false and no blood was found upon his clothes. It is

also submitted that no willingness was shown by him for recording

his statements under Section 164 Cr.P.C. by the Magistrate. The

police gave threat that you should make confession before the

Magistrate in your statement, therefore, whatever confessional

statement is recorded by the magistrate under Section 164

Cr.P.C., were not recorded as per his free will because he was

compelled by the police to give such type of confessional

statement. In defence three documents were exhibited and no

oral evidence was produced by the accused appellant inspite of

granting an opportunity.

The learned trial Judge thereafter heard the arguments and

framed following question for deciding the case, which reads as

infra:

“D;k vfHk;qDr us fnukd
a 17-05-2010 dks le; yxHkx fnu eas 12-

00 cts ls 1-30 ih ,e ds e/; ljgn ekt S k okMZ uca j 16 lknqy”kgj eas
/keZohj “kekZ ds vkoklh; edku eas vius fdjk;s ds dejs eas dqekjh “kkyw ds
lkFk mldh bPNk ds fo:) vkSj lEefr ds fcuk eSFkuq djds cykRlxa
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fd;k rFkk lk”k; ;k tkudkjh j[krs gq;s dqekjh “kkyw ds cNZs dh flj o
“kjhj ij ekjdj mldh e`R;q dkfjr djds gR;k dkfjr dh”

The learned trial court after hearing final arguments

convicted the accused appellant for the offences under Sections

302 and 376 of IPC and passed death sentence for offence u/s

302 IPC and life imprisonment for offence u/s 376 of IPC vide

judgment dated 10.01.2013 in Session Case No.15/2010 and

made reference for confirmation of death sentence. The accused

appellant preferred appeal and challenged the judgment dated

10.01.2013 on various grounds.

Mr. Mahesh Bora, Sr. Advocate assisted by Mr. Nishant Bora

and Mr. ArunKumar, vehemently argued that the entire

prosecution case is based upon circumstantial evidence and there

is no eyewitness of the incident. The prosecution has relied upon

the confessional statement of the accused appellant recorded

under Section 164 Cr.P.C. (Ex.P/40) by the learned Judicial

Magistrate, First Class, Sri Ganganagar (Mr. PremSingh Dhanwal),

however, the said statements cannot be relied upon for the

purpose of conviction because the same were not recorded as per

willingness of the accused appellant because on the date of

recording the statements under Section 164 Cr.P.C. by the

Magistrate, for all purposes, the accused appellant was in the

police custody and if any confessional statement is recorded by

the Magistrate, when accused appellant was in police custody, the

same cannot be relied upon so as to hold accused appellant guilty

for committing offence of murder and rape. It is also argued that
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entire case is based upon the evidence of last seen and

confessional statement recorded under Section 164 Cr.P.C., but

the prosecution has miserably failed to prove both these grounds,

because two witnesses of last seen, viz. PW.4 Puran Ram and

PW.11, Sahabram, are the planted witness so as to prove the fact

of last seen. Therefore, their testimony deserve to be discarded

for the simple reason that presence of both these witnesses is

seriously doubtful. It is also argued that one Pinki was most

important witness of the prosecution whose name is mentioned in

the FIR has not been produced by the prosecution to prove the

fact that deceased Shalu left the house and went with Sonu

Kumar. Therefore, in absence of reliable evidence of Smt. Pinki,

whose presence in the house, is disclosed in the FIR by the

complainant, it cannot be said that prosecution has proved its

case beyond reasonable doubt.

Learned counsel for the accused appellant further argued

that Magistrate can record the statements under Section 164

Cr.P.C., but it is mandatory for him to record confessional

statement as per procedure laid down u/s 281 Cr.P.C. A bare

perusal of the statement (Ex.P/40) would reveal that those

statements were recorded in violation of Section 281 Cr.P.C.

Learned counsel for the appellant invited our attention towards

the fact that the accused appellant was arrested at 07.10 PM on

17.05.2010 and he was produced before the Magistrate for taking

police remand on the next day i.e. on 18.05.2010 at 04.45 PM.

The learned Civil Judge (Jr.Division)-cum-Judicial Magistrate, First
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Class, Sadulsahar, granted two days police remand and directed

the investigating officer to produce the accused before the court at

12.00 PM on 20.05.2010. It is also submitted that in between the

said period, an application was filed by the investigating officer

before the learned Judicial Magistrate, Sri Ganganagar, on

18.05.2010 for recording the statements of accused u/s 164

Cr.P.C. upon which the learned Magistrate passed an order on

18.05.2010, whereby the investigating officer was directed to

produce accused Sonu Kumar, for recording his confessional

statement on 19.05.2010 at 10.00 AM.

While inviting our attention towards (Ex.P/36) application

filed by the investigating officer, in which it was prayed that the

accused has made confession during investigation, therefore, his

statements may kindly be recorded. Admittedly, on 18.05.2010,

Sonu Kumar was in police custody and remand for police custody

was given by the learned Magistrate up to 20.05.2010 but the

investigating officer produced the accused appellant before the

concerned Magistrate on 19.05.2010 at 07.55 AM and on date,

accused Sonu Kumar was sent to judicial custody up to

31.05.2010 but instead of sending the accused appellant to

judicial custody, the investigating officer straightway produced the

accused appellant for recording his statement on the same day

before the Judicial Magistrate No.1, Sri Ganganagar on

19.05.2010 where his confession statement was recorded under

Section 164 Cr.P.C.

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The learned Senior Advocate vehemently argued that there

was no willingness of the accused appellant for recording his

confessional statements under Section 164 Cr.P.C. and the so-

called statements recorded under Section 164 Cr.P.C. were

recorded under threat of police officials when he was in police

custody, which is apparent from the fact that an application was

moved by the investigating officer before the Magistrate, in which

it was specifically stated that during investigating, the accused

appellant has made confession, therefore, his statements may be

recorded under Section 164 Cr.P.C. The argument of learned

counsel for the appellant is that the statements recorded u/s 164

Cr.P.C. cannot be relied upon so as to hold accused appellant

guilty because statements were recorded when the accused

appellant was in police custody, so also, the day on which the

application was filed by the investigating officer for recording

statement of accused u/s 164 Cr.P.C., he was very much in police

custody, therefore, it was the duty of the learned trial court to

disbelieve the confessional statement of accused appellant, which

is said to be recorded u/s 164 Cr.P.C. without following the

procedure laid down u/s 281 of Cr.P.C. As per argument of the

appellant‟s counsel, the lead trial court has erroneously relied

upon the said statement so as to hold accused appellant guilty,

therefore, the judgment suffers from patent illegality.

Learned Senior Advocate while attacking upon the evidence

of last seen submitted that as per prosecution case, there were

three witnesses of last seen viz. PW.3 Puranram, PW.11,
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Sahabram, and Pinki (wife of younger brother of complainant). As

per complainant, when he reached at home, Smt. Pinki gave

information that Sonu called Shalu, when she was in the house

and upon calling, Shalu went along with Sonu Kumar. But, Pinki

has not been produced before the court to prove said fact.

Therefore, it is argued that prosecution has failed to examine this

important witness to prove the case against the appellant. While

inviting attention towards the statement of PW.3, Puran Ram, it is

vehemently argued that upon perusal of his statements, it will

reveal that his presence is seriously doubtful because if said Puran

Ram was present and went along with complainant to search

deceased, Shalu, then, obviously his statements were to be

recorded immediately by the police but as per prosecution case,

statement of PW.3- Puran Ram were recorded under Section 161

Cr.P.C. after two days. It is also argued that if PW.3- Puran Ram

had seen Shalu in the company of Sonu Kumar, then why he has

not made effort for rescue of Shalu, therefore, it is obvious that

testimony of this witness has wrongly been relied upon by the

learned trial court for recording finding of conviction. While

inviting attention towards the statement of PW.11 Sahab Ram, it

is submitted that said witness was ward member of the area and

as per his statement, accused appellant was going with one girl on

the date of incident. When he was going to his house for taking

meal and further stated that Mangilal complainant met him, and

upon inquiry about his sister, he said that Sonu Kumar had taken

his sister. The learned counsel for the appellants submit that the
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fact of last seen has not been proved by the prosecution because

both the witnesses PW.3 Puran Ram and PW.11 Sahab Ram are

planted witness, therefore, the important circumstance of last

seen has not been proved by the prosecution beyond reasonable

doubt.

With regard to recovery of clothes, it is submitted that as per

arrest memo, clothes which accused was wearing at the time of

occurrence, were immediately taken in possession because those

clothes were having blood upon them, but there is no evidence on

record that as to what type of clothes were given to the appellant

to wear after taking his clothes, therefore, the recovery of clothes

cannot be used as evidence to connect the appellant with the

alleged crime of murder. While inviting our attention towards

postmortem report (Ex.P/32), and statement of the doctor PW.14,

Dr. Madan Singh, it is submitted that in the postmortem report

the doctor opined that the injuries were in the form of lacerated

wound and were caused by blunt weapon but in the investigation

one sharp edged weapon viz. „Iron-Barchi‟ was recovered,

therefore, on this ground also, it is obvious that prosecution has

failed to connect the recovery of sharp edged weapon with the

injuries found upon the person of deceased. According to

argument, it is a case in which neither evidence of last seen is

proved nor the confession statement of appellant is doubtful, the

recovery of clothes and nature of injuries found upon the dead

body relates with the weapon recovered at the instance of the

appellant. The prosecution has miserably failed to prove the
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occurrence, therefore, it is obvious that trial court erroneously

held the accused appellant guilty and has wrongly passed the

death sentence as well as imprisonment for life u/s 302 and 376

of IPC respectively without any evidence.

In view of above, it is submitted that as per evidence

available on record, not only the finding of guilt recorded u/s 302

and 376 IPC deserves to be quashed, the appellant is entitled to

be acquitted from the charges levelled against him.

Per contra, learned Public Prosecutor and learned counsel for

the complainant, vehemently argued that there is no strength in

the arguments advanced by the learned counsel for the accused

appellant because upon trustworthy and reliable evidence, the

learned trial court held the accused appellant guilty for the offence

sunder Sections 302 and 376 of IPC. It is submitted that although

prosecution case is based upon circumstantial evidence and extra

judicial confession and recovery of clothes and weapon, but it

cannot be said that the accused is entitled to be acquitted from

the charges levelled against him because accused appellant was

married person and being friend of Mangilal (brother of the

deceased) used to visit at the house of Mangilal but developed

illicit relations with deceased, Shalu, and this fact is established

from the prosecution evidence. The entire prosecution case is

based upon testimony of 16 witnesses, none of the witnesses

turned hostile and completely supported the prosecution case.

While inviting attention towards statements of PW.-16, Prem

Singh Dhanwal, who was the Judicial Magistrate, First Class No.1,
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Sri Ganganagar, it is submitted that the confessional statement of

accused appellant was recorded by him under Section 164 Cr.P.C.

and as per directions given by Chief Judicial Magistrate, Sri

Gangangar, upon request made on behalf of accused. The learned

Magistrate (PW-16 Prem Singh Dhanwal) categorically stated on

oath before the court that confessional statement of the accused,

Sonu @ Sohan Lal were recorded as per his will and informing him

that there is no pressure upon you to give confessional statement

and you are free to give your statement or not. The Magistrate

stated before the court that he has recorded his satisfaction to

test the independency of the accused appellant for the purpose of

recording his confessional statement; and thereafter recorded the

confessional statement (Ex.P/40) in which the accused appellant

accepted the incident for committing murder of deceased, Shalu.

The crux of the arguments of learned Public Prosecutor is

that not only circumstantial evidence is relied upon by the trial

court but there is confessional statement recorded by the Judicial

Magistrate No.1, Sri Ganganagar, in which the accused appellant

accepted his guilt for committing murder of deceased, Shalu, with

whom he was having illicit relations. According to learned Public

Prosecutor, the statement of Magistrate (PW.16) Prem Singh

Dhanwal, cannot be doubted because he is independent witness

and performed his legal duty assigned to him, therefore, how it

can be said that procedure adopted by the Magistrate for the

purpose of recording the confessional statement of the accused

was faulty or illegal in any manner. Thus, the finding of guilt
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recorded by the learned trial court does not suffer from any

illegality.

Learned Public Prosecutor invited our attention towards the

statement of PW.-1 Mangilal, and PW.-2 Krishanlal, both brothers

of the deceased, PW.3- Purnram, PW.11 Sahabram, and submits

that these witnesses categorically stated before the court that

accused appellant was having illicit relations with Shalu and an

objection was raised by the brothers and “Panchayat” was also

held to sort out the dispute and the accused was warned not to

have illicit relations with Shalu. It is also submitted that the dead

body of the deceased, Shalu was found in the rented house of the

accused appellant and this fact is not only proved by the brothers

of the deceased and other witnesses but also by the witness

PW.7- Dharamveer and PW.8- Savitri, (landlord of the accused, in

whose house the accused appellant was residing as tenant). The

witness PW.8- Savitri stated on oath that dead body of the

deceased, Shalu was found in their room, which was let out to

accused, therefore, if the dead body of deceased, Shalu, was

found in the house of accused, then obviously it was to be

explained by the accused appellant as to how dead body of

deceased was found in his room/house. In view of this it is

submitted that there is no question to disbelieve the prosecution

case on the basis of grounds raised by the counsel for the

accused.

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Learned Public Prosecutor and learned counsel for the

complainant for maintaining the finding of conviction invited our

attention towards following judgments: –

(a) State of Rajathan Vs. Thakur Singh reported in 2014 AIR
SCW 4479.

(b) Phula Singh Vs. State of Himmachal Pradesh, reported in
2014 AIR SCW 1499.

(c) State of Rajasthan Vs. Manoj Yadav reported in 2012
Cr.L.J. 456

(d) Vasanta Sampat Duparev Vs. State of Maharashtra
reported in AIR 2015 SC (Supp) 14

While replying upon aforesaid judgments he submits that no

illegality or error has been committed by the learned trial court in

view of aforesaid judgments so as to hold accused appellant guilty

and imposing capital punishment for the offence committed by the

accused appellant under Section 302 IPC and imprisonment for life

for offence u/s 376 of IPC, therefore, the instant appeal may

kindly be dismissed and the murder reference made by the

Sessions Judge, Sri Ganganagar, to confirm the death sentence,

may kindly be accepted.

After hearing the learned counsel for the parties, we have

perused the entire judgment rendered by the learned trial court as

well as evidence on record. Admittedly, complainant, PW.-1,

Mangilal, brother of deceased submitted a written report (Ex.P/1)

on 17.05.2010 at 03.00 PM at Police Station- Sadulsahar, where

F.I.R. No.140/2010 (Ex.P/2) was registered against the accused

appellant under Section 302 IPC. The police went on the spot in

the rental house of accused appellant Sonu @ Sohanlal and the
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dead body of the deceased was recovered from the said house.

The police prepared site plan (Ex.P/3) of the place where the dead

body was lying and details of the place where dead body was

lying, was recorded vide Ex.P/3A on 17.05.2010. Vide Ex.P/4,

„Panchnama‟ of the dead body was prepared at 04.00 PM and

blood stained bed sheet, pillow cover upon which the dead body

was lying were taken in possession vide Ex.P/5. Blood stained

sleepers of the deceased, Shalu, were taken in possession vide

Ex.P/6. One piece of blood stained “Chunri” was recovered from

the fan vide Ex.P/7. The blood spread over on the floor was also

collected and taken in possession and undergarment of the

deceased were taken in possession vide Ex.P/9. After postmortem

the dead body of the deceased was handed over to the brothers of

the deceased viz. Mangilal and Sahabram and Purnram on the

same day i.e. on 17.05.2010 in the evening. The accused was

arrested on 17.05.2010 at 07.00 PM vide Ex.P/24 and upon his

information the place of occurrence was also identified and a blood

stained „Barchhi‟, the weapon of offence, which was used to

commit murder of the deceased was recovered at 06.30 AM on

18.05.2010. The site plan of the place from where the „Barchhi‟

was recovered was prepared vide Ex.P/23) and details were

recorded vide Ex.P/23A. Blood stained tracksuit (ik;tkek) of the

accused was recovered as per his information vide Ex.P/35 on the

same day. The postmortem of the dead body was conducted at

Govt. Hospital, Sadulsahar by the Medical Officer at 05.40 PM on

17.05.2010 and postmortem report (Ex.P/32) was give by the
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doctor to the investigating officer. All the articles were sent to FSL

for examination and vide Ex.P/37, it was reported by FSL that

human blood of „B‟ group was found upon all the articles sent for

chemical examination.

In support of prosecution case, statements of 16 witnesses

were recorded. The author of the FIR PW.-1 Mangilal, brother of

the deceased, categorically stated in his statements that accused

Sonu @ Sohanlal was resident of Karanpur, but he shifted at

Sadulsahar and they were working together, therefore, friendship

was developed in between them. Due to friendship, accused Sonu

@ Sohanlal, used to visit his house and developed illicit relations

with his younger sister, Shalu (deceased), an objection was raised

not only by the complainant, Mangilal, but also by other members

of the family. However, the accused did not change his way and

continue to have illicit relations with deceased, Shalu and

ultimately he has killed her in his rented house. Although in the

cross-examination, certain questions were put to the witness,

Mangilal (PW.1) with regard to the fact that who has given

information on the date of occurrence that Shalu was taken

forcibly by Sonu @ Sohan Lal. The witness in his examination-in-

chief categorically stated that on the date of incident at about

12.00 AM in the morning hours, when he came back from his work

place to his house, the wife of his younger brother, Smt. Pinki

informed that accused Sonu @ Sohan Lal had forcibly taken Sahlu

with him. Thereafter, a search was made by him. As per witness

Mangilal (PW.1) first of all he met Purnram and made enquiry
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about Shalu. Purnram informed that I have seen Shalu along with

Sonu @ Sohan Lal when they were going towards school.

Thereafter Sahab Ram (other witness) also informed that Sonu @

Sohanlal while taking Shalu with him was going toward Wad

No.16. Upon receiving aforesaid information, the complainant

Mangilal immediately went to the house of Dharamveer, where

accused appellant, Sonu @ Sohan Lal was living as tenant, but

Sonu @ Sohan Lal was not found there and his room was closed,

however, from the ventilator (taxyk) he saw that dead body of his

sister, Shalu was lying on the floor and blood was spread on the

floor. The complainant immediately went to the police station for

registration of FIR and submitted written report, upon which FIR

was registered and police immediately reached at the place of

occurrence and opened the door of house and proceeded to

conduct investigation. During investigation, all the articles were

recovered from the place of occurrence and statements of other

witnesses, Purnram, Sahabram, Dharaveer Sharma and Saviti

(mother of Dharamveer, landlord) were also recorded under

Section 161 Cr.P.C. All these witnesses categorically proved the

fact that dead body of deceased, Shalu, was recovered from the

house, where accused appellant was residing on rent. It is true

that Pinki, wife of younger brother of Mangilal (complainant), was

not produced before the court as prosecution witness, but in our

opinion when it is proved by the prosecution that the dead body of

the deceased was found in the rented house of the accused, Sonu

@ Sohan Lal, then, non-production of Pinki as prosecution witness
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[MREF-1/2013]

in the trial court, cannot be treated a ground to disbelieve the

prosecution story. Therefore, the argument of the learned counsel

for the accused appellant that material witness has not been

produced and examined before the court, is immaterial.

We have perused the statement of other witnesses. All the

witnesses Dharamveer, Savitri, Puran Ram, Sahab Ram and

investigating officer gave statement and categorically proved the

fact that dead body of deceased, Shalu was recovered from the

house of the accused, the FSL report loudly speaks that clothes of

deceased, as well as of accused, and other material recovered

from the place of occurrence, which were sent to the FSL, and

according to FSL report, human blood of „B‟ ground was found

upon them. Therefore, on this ground also, we are of the opinion

that there is no strength in the argument of the learned counsel or

the accused appellant that whole prosecution story is doubtful.

We have also considered the argument of learned counsel for

the accused appellant with respect to confessional statement of

the accused was recorded when he was in police custody. The

accused appellant was arrested on 17.05.2010 vide Ex.P/24 and

was produced before the Magistrate for taking police remand on

the next day i.e. 18.05.2010 at 04.45 PM and the learned

Magistrate granted two days‟ police remand for investigation and

directed the investigating officer to produce accused Sonu @

Sohnalal before the court on 20.05.2010 at 12.00 PM. On

18.05.2010, an application was moved before the Judicial

Magistrate, Sri Ganganagar for recording statement of the accused
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[MREF-1/2013]

u/s 164 Cr.P.C. The learned Magistrate passed an order that

accused Sonu @ Sohan Lal may be produced before him for

recording his statements at 10.00 AM on 19.05.2010. According to

learned counsel for the accused appellant, on 18.05.2010 accused

appellant Sonu @ Sohan Lal was in police custody because

remand was given by the magistrate up to 20.05.2010, but as per

evidence on record the investigating officer produced the accused

appellant before the Magistrate a day before on 19.05.2010 at

07.15 and the concerned Magistrate passed an order to send the

accused in the judicial custody up to 31.05.2010. The

investigating officer before lodging the accused appellant to

judicial custody produced the accused before the Judicial

Magistrate, Sri Ganganagar on 19.05.2010, where his confessional

statement was recorded under Section 164 Cr.P.C.

To consider this argument of the learned counsel for the

accused appellant that the magistrate recorded the statements in

violation of Section 281 of Cr.P.C., we have examined the entire

evidence available on record. There is no doubt that after arrest

the accused appellant was produced before the magistrate on

18.05.2010 for the first time at about 04.45 PM and on that date,

two days‟ police remand was given for the purpose of

investigation with further direction to produce the accused on

20.05.2010 at 12.00 PM, but the investigating officer although

having two days‟ police remand, but due to completion of

investigation produced the accused a day before on 19.05.2010 at

07.55 AM to send him in judicial custody. The concerned
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[MREF-1/2013]

Magistrate passed an order at 07.55 AM on 19.05.2010 whereby

accused appellant was sent to judicial custody up to 31.05.2010.

It is admitted position of the case that before sending the

accused appellant to the judicial custody, the accused was

produced before the Judicial Magistrate, First Class No.1, Sri

Ganganagar (PW.16 Prem Singh Dhanwal) for recording his

statement u/s 164 Cr.P.C. and we have perused the statement of

PW.16- Prem Singh Dhanwal, who was posted as Judicial

Magistrate, First Class No.1, Sri Ganganagar on 19.05.2010, in

which he has categorically stated that accused appellant was

produced before him at 10.00 AM in the morning for recording his

statement under Section 164 Cr.P.C. There is no evidence on

record that any objection was raised by the accused appellant

before the magistrate concerned that he is not willing to give

statement under Section 164 Cr.P.C. or he is under the fear of

police. We have perused the cross-examination of PW.16- Prem

Singh Dhanwal, in which following statement is given by him,

which reads as under:

“;g lgh gS fd izn”kZ ih36 izkFkZuk i vfHk;qDr lkus w mQZ
lkgs uyky }kjk i”s k ugha fd;k x;kA ;g lgh gS fd izn”kZ ih36 ds Åij
i”r ij ejs s }kjk fd, x, i’` Bkd a u lh ls Mh ij vfHk;qDr ds dkbs Z
gLrk{kj ugha gSA ;g lgh gS fd vfHk;qDr dks iqfyl vfHkj{kk ls izn”kZ
ih36 ds lkFk ejs s le{k i”s k fd;k x;k FkkA euaS s ekSf[kd :i ls vfHk;qDr
dks lek fn;k Fkk fd eSa U;kf;d eftLVªVs dh gSfl;r ls lLa ohd`fr
y[s kc) d:xa k vkSj vfHk;qDr dks ;g Hkh lek fn;k Fkk fd vki
lLa ohd`fr djus ds fy, vkc/k ugha gS vkSj ,d ?kVa k lkp s us dk le; fn,
tkus ds i’pkr~ vfHk;qDr us LoPs Nk ls lLa ohd`fr ejs s le{k dh ftldks eSua s
izn”kZ ih40 eas th ls ,p ds :i eas y[s kc) dh vkjS lek tkus ds
(24 of 27)
[MREF-1/2013]

lca /a k eas vkSj vU; rF;kas ds lca /a k eas tks fd vfHk;qDr dks crk, x, Fks
mldk izek.k i bZ ls ,Q ejs s }kjk fy[kk x;k FkkA ;g lgh gS fd inz “kZ
ih40 ds izek.k i eas ;g fy[kk gqvk ugha gS fd eSua s fdl gSfl;r ls
lLa ohd`fr y[s kc) dh FkhA ;g lgh gS fd vfHk;Dq r dh lLa ohd`fr y[s kc)
djus ds i’pkr~ bZ ls ,Q izek.k i y[s kc) fd;k gqvk gAS ;g lgh gS
fd euaS s vfHk;qDr dks fyf[kr eas ;g ugha fn;kFkk fd vki lLa ohd`fr djus
ds fy, vkc/k ugha gSA ;g lgh gS fd vfHk;Dq r dh lLa ohd`fr y[s kc)
djus ds i’pkr~ izn”kZ ih36 izkFkhuZ k i i”s k djus okys vuql/a kku
vf/kdkjh dks gh vfHk;Dq r lqiqnZ fd;k x;k FkkA vul q /a kku vf/kdkjh dk
uke enu flga ,l- vkbZ- gAS vkt e q s /;ku ugha gS fd vfHk;Dq r dks
enu flga ,l- vkbZ- yd s j vk;k Fkk ;k vU; ifq yldehZ yd s j vk;k FkkA
;g xyr gS fd vfHk;qDr us iqfyl ds ncko eas lLa ohd`fr dh gkAs “

Upon perusal of above cross-examination made by the

appellant‟s counsel, it is apparent that no question was put to the

Magistrate that any request was made by the accused appellant,

Sonu @ Sohan Lal, that he is not willing to give statement under

Section 164 Cr.P.C. Therefore, it cannot be said that confessional

statement was recorded under any threat or duress of the

investigating officer in contravention of Section 281 Cr.P.C. The

learned trial court gave finding that in the confessional statement

(Ex.P/40) the accused accepted that he was having relation with

deceased, Shalu, and committed murder of deceased, Shalu after

committing inter-course with her. In our opinion, even if some

lapses are there, as pointed out by the counsel for the accused

appellant, but it cannot be said that trial court has committed any

error while holding the accused appellant guilty on the basis of

confessional statement and circumstantial evidence because there

is ample evidence to establish the fact that dead body of Shalu

was found in the house of accused and there is no explanation of
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[MREF-1/2013]

accused, as to how the dead body of deceased Shalu was found in

his house.

We have considered the argument of learned counsel for the

accused appellant that there is no eyewitness to prove the

occurrence. It is true that there is no eyewitness in this case but

prosecution has proved and established the fact that dead body of

deceased, Shalu, was recovered from the house of the accused

appellant and if accused appellant was not having any relationship

with the deceased Shalu, then how the dead body of deceased

was found in the house of accused appellant. It is also required to

be observed that not only PW.1, Mangilal and PW.2 Kishanlal,

brothers of deceased proved the recovery of dead body in the

rented room/house of the accused appellant, and proved the fact

with regard to accused appellant having illicit relations with their

sister, but other independent witnesses, viz. Dharamveer (PW.7)

and Savitri (PW.8), the landlord of the rented house of accused

and Madan Singh (PW.15) Sub-Inspector of Police Station-

Sadulsahar, who has conducted the investigation, categorically

proved that dead body of deceased Shalu was found in the house

of accused Sonu @ Sohanlal, where accused was residing as

tenant.

In view of above, we are of the opinion that the prosecution

has proved its case beyond reasonable doubt that the accused

appellant was having illicit relations with deceased Shalu and it

was the accused appellant, who committed rape with her in his

rented house and thereafter committed murder, which he has
(26 of 27)
[MREF-1/2013]

accepted in his confessional statement (Ex.P/40) recorded by the

Judicial Magistrate, First Class No.1, Sri Ganganagar, therefore,

there is no question to disturb the finding of guilt recorded by the

trial court against the accused appellant for committing offences

under Sections 302 and 376 IPC.

We have also considered the argument of learned Public

Prosecutor for confirmation of the death sentence passed by the

trial court against the accused appellant for commission of offence

under Section 302 of IPC while recording the finding that it is a

rarest of rare case. In our opinion, the finding recorded by the

trial court to treat the present case as rarest of rate case, is not

sustainable in law because as per prosecution case the deceased

was having relations with the accused and she used to meet

accused appellant as per her free will, even though, objections

were raised by the members of her family; and on the date of

incident, her body was found in the house of accused appellant,

but there is no evidence on record to prove the fact that she was

forcibly taken by the accused appellant to his house because Pinki,

sister-in-law of the complainant PW.1 Mangilal who was present in

the house and gave information to complainant, has not been

produced before the court to prove the fact that Shalu was forcibly

taken by accused. It is also admitted fact that there is no

eyewitness of the incident but prosecution has proved the

allegations on the basis of circumstantial evidence. Therefore, it is

not a case which could be treated as rarest of rare case so as to

confirm the death sentence passed by the trial court. In case of
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[MREF-1/2013]

Sunil Dutt Sharma Vs. State (Govt. of NCT of Delhi) reported

in (2014) 4 SCC 375, the Hon‟ble Apex Court held that in rarest

of rare case maximum sentence can be imposed but not

otherwise.

Accordingly, and in view of above discussion we are not

inclined to confirm the death sentence, therefore, Murder

Reference No.1/2013 made by learned Special Additional Sessions

Judge (Women Atrocities Dowry Prohibition) Cases, Sri

Ganganagar, to confirm the death sentence is hereby rejected.

Consequently, the D.B. Criminal Appeal No.64/2013 filed by

appellant is partly allowed and while upholding the finding of guilt

recorded by the trial court against the accused appellant, the

punishment of death sentence under Section 302 IPC is hereby

altered to the imprisonment for life along with fine of Rs.5000/-

with default stipulation to undergo one year‟s additional

imprisonment. The prosecution has proved its case beyond

reasonable doubt for offence under Section 376 IPC, therefore,

the conviction and sentence for the said offence passed by the

learned trial court, is hereby affirmed.

Consequently, the appeal of the accused appellant is partly

allowed.

(DEEPAK MAHESHWARI)J. (GOPAL KRISHAN VYAS)J.

DJ/-

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